Farrell v. Catherine Babb, Beth King, Robert King, City of Oxford, Miss., & Baptist Mem'l Hospital-North Miss., Inc. (In re Inclusion Into the City of Oxford)

• Citation: 142 So.3d 401
• Decision Date: 17 July 2014
• Docket Number: No. 2013–AN–00433–SCT.,2013–AN–00433–SCT.
• Court: United States State Supreme Court of Mississippi
• Parties: In the Matter of Inclusion into the CITY OF OXFORD, Mississippi. Kenneth F. Farrell, James Morris and Terry Joe Blount v. Catherine Babb, Beth King, Robert King, City of Oxford, Mississippi, and Baptist Memorial Hospital–North Mississippi, Inc.

142 So.3d 401

In the Matter of Inclusion into the CITY OF OXFORD, Mississippi.

Kenneth F. Farrell, James Morris and Terry Joe Blount

v.Catherine Babb, Beth King, Robert King, City of Oxford, Mississippi, and Baptist Memorial Hospital–North Mississippi, Inc.

No. 2013–AN–00433–SCT.

Supreme Court of Mississippi.

July 17, 2014.

John P. Scanlon, Jerry L. Mills, Ridgeland, attorneys for appellants.

J. Chadwick Mask, Clifton M. Decker, Jackson, Brad Walsh, James L. Jones, Jackson, Pope S. Mallette, Oxford, attorneys for appellees.

EN BANC.

WALLER, Chief Justice, for the Court:

¶ 1. Catherine Babb, Beth King, and Robert King (“Petitioners”) filed a Petition for Inclusion of certain real property into Oxford, Mississippi, pursuant to Mississippi Code Sections 21–1–45 to 47. This property is scheduled to become Baptist Memorial Hospital–North Mississippi, Inc. (BMH), a new, multi-million-dollar medical facility. Kenneth Farrell and others (“Objectors”) filed an objection to the Petition. The Chancery Court of Lafayette County found the Petitioners met the statutory requirements for inclusion and approved the Petition. The Objectors appealed. We affirm the judgment of the Lafayette County Chancery Court.

FACTS AND PROCEDURAL HISTORY

¶ 2. The first Petition for inclusion was filed on February 7, 2012, by Catherine Babb, Beth King, and Robert King.¹ The Kings owned the 160 acres that were the subject of this petition, referred to as the “proposed inclusion area,” hereafter the “PIA.” In the Petition, Babb alleged she was the sole qualified elector residing in the PIA and therefore, she fulfilled the two-thirds-elector requirement of Mississippi Code Section 21–1–45. ² The petition subsequently was joined by individuals who had an ownership interest in the PIA. The City of Oxford filed a response to the Petition, stating it had no objection to the Petitioners' request that the PIA be included within Oxford's municipal limits.

¶ 3. The Petitioners filed a “Prehearing Memorandum Brief” in which they alleged Babb leased an acre within the PIA, moved into a home within the PIA before filing the Petition; she was the only person living within the entire PIA at the time and was registered to vote at that address. The Objectors filed an objection to the Petition and entered an appearance the day of the hearing.³ At the hearing, the Petitioners questioned the standing of some of the Objectors to challenge the Petition. The chancellor granted a continuance for the parties to conduct discovery and set trial for a later date.

¶ 4. In their responses to discovery, the Objectors argued that a single qualified elector's use of the inclusion statute to annex an area was a misuse of the provision; that the proposed inclusion was not “required by the public convenience and necessity,” and this action was merely “an attempt to divert development from other more desirable sites within the existing City of Oxford.” It became clear what the PIA was going to be used for when BMH entered an appearance in the case, stating it had reached an agreement with the City of Oxford to construct a new hospital and already had “acquired a significant portion” of the PIA.

¶ 5. On June 4, 2012, Petitioners filed an “Unopposed Motion for Leave to Amend their Inclusion Petition” to clarify the description of the PIA. The motion was granted and another trial date was set, however; the Objectors' attorney, Jerry Mills, suffered a stroke and a continuance was granted.

¶ 6. At trial, the chancellor heard testimony from Oxford Mayor Pat Patterson, Alderman Janice Antonow, civil-engineering and public-utilities expert Bart Robinson, BMH Chief Financial Officer Dana Williams, urban-planning expert Mike Slaughter, Oxford Police Chief Mike Martin, Oxford Fire Chief Cary Sallis, and Petitioners Robert King and Catherine Babb.⁴ Babb testified that she was a nineteen-year-old student, registered to vote in Lafayette County, and that there was only one house within the PIA. She testified, that on February 6, 2012, she signed a lease, moved into the house, changed her voter registration to that address, and signed the Petition for Inclusion.⁵ She stated she moved into this house because her family asked her to and she wanted to be on her own. The home was owned by Robert King, a relative of Babbs, who joined the Petition as a landowner in the PIA. She further testified that she signed the Amended Petition for inclusion on July 16, 2012, while still living in the house.

¶ 7. However, she also testified that she did not live on the property at the time of trial; that she had signed a lease on a new house July 18, 2012, and moved out of the PIA in August 2012. While she lived in the PIA, Babb testified that the utilities remained in King's name but she had signed what she thought was a year lease. She also stated that she did not spend much time in the house in July 2012. King testified that he sold the land in question to BMH sometime in May 2012, but Babb continued to reside on the property thereafter and was never forced to leave. He further testified that Babb had signed a lease and her mother had made a couple of payments.

¶ 8. The chancellor ultimately issued an Opinion and a Decree granting the Petition for Inclusion, finding the inclusion request was required by public convenience and necessity and was reasonable under the totality of the circumstances. Importantly, the chancellor found that Babb was the “sole qualified elector” residing in the PIA when the Petition and Amended Petition were filed, and that the two-thirds requirement of Section 21–1–45 is determined by looking at the persons in the PIA at the time of filing.

¶ 9. The Objectors attempted to limit the questions on appeal to: whether their motion for a continuance due to Mills's health should have been granted and whether the trial court had jurisdiction to hear the matter on the day of trial “when undisputed testimony showed that the PIA was uninhabited.” ⁶ The Objectors limited their record designations to Babb's testimony, the legal argument on the motion for a continuance, and a limited number of pleadings. The Petitioners filed a supplemental designation, in which they included the entire record from the trial, including all exhibits admitted into evidence, the entire trial transcript, transcripts of other hearings, and other pleadings.

¶ 10. The Objectors filed a “Motion to Strike, or Alternatively, Application for Order Requiring Appellee's Payment for Supplemental Record,” arguing the cost increase of the supplemented record designation was substantial and the supplemental documents were not relevant to their issues on appeal. The chancellor denied this motion. The Objectors filed an amended statement of the issues on appeal, raising the following issues: ⁷

I. Whether the Petitioners complied with the statutory jurisdictional requirements of Mississippi Code Section 21–1–45; specifically, whether the qualified-elector requirement is met at the time of filing the petition or the time of trial.

II. Whether the trial court erred in denying the Objectors' Motion to Strike or order Petitioners to pay for the supplemental record.

DISCUSSION

¶ 11. The Objectors raise two issues on appeal which call for differing standards of review. This Court reviews a chancellor's findings as to whether a petition for inclusion is legally sufficient under a manifest-error standard. See In re Enlargement of Boundaries of City of Southaven, 5 So.3d 375, 376 (Miss.2009). The denial of a motion to strike or order to pay for the supplemental record is reviewed for abuse of discretion. See Schmidt v. Catholic Diocese of Biloxi, 18 So.3d 814, 832 (Miss.2009).

I. Whether the Petitioners complied with the statutory jurisdictional requirements of Mississippi Code Section 21–1–45; specifically, whether the qualified-elector requirement is met at the time of filing the petition or the time of trial.

¶ 12. The applicable statute requires that a petition for inclusion be signed by two-thirds of the “qualified electors residing in” a PIA; however, it does not state whether this requirement is met at the time of filing the petition or at trial. Mississippi Code Section 21–1–45 states in pertinent part:

The qualified electors of any territory contiguous to and adjoining any existing municipality and the qualified electors of any territory which is a part of an existing municipality, may be included in or excluded from such municipality, as the case may be, in the manner hereinafter provided. Whenever the inhabitants of any incorporated ⁸ territory adjacent to any municipality shall desire to be included therein, and whenever the inhabitants of any territory which is a part of an existing municipality shall desire to be excluded therefrom, they shall prepare a petition and file same in the chancery court of the county in which such municipality is located, which said petition shall be signed by at least two-thirds of the qualified electors residing in the territory proposed to be included

in or excluded from such municipality. Said petition shall describe accurately the metes and bounds of the territory proposed to be included in or excluded from such municipality, shall set forth the reasons why the public convenience and necessity would be served by such territory being included in or excluded from such municipality, as the case may be, and shall be sworn to by one or more of the petitioners. In all cases, there shall be attached to such petition a plat of the municipal boundaries as same will exist in the event the territory in question is included in or excluded from such municipality.

Miss.Code Ann. § 21–1–45 (Rev.2007) (emphasis added). The Objectors initially argue that “the statute clearly contemplates the inclusion procedure as being available only to inhabitants” of a PIA. They also argue that this Court's application of Myrick v. Incorporation of a Designated Area into a Municipal Corporation to be Named...